In a landmark decision in 2012, the Indonesian Constitutional Court ruled that many paragraphs in the Forestry Law were unconstitutional because they classified all forest land as state land, and thus failed to recognize the land claims of customary (adat) communities.
This decision has been warmly welcomed by environmentalists and advocates for indigenous rights.However, in order to have real impact, principal recognition of customary ownership rights at the national level is not sufficient; there must also be regional regulations that identify which forest areas that actually belong to customary communities.
While there are areas where such regional legislation exists, it is largely absent – and advocating for such legislation may be an uphill struggle, considering the controversies surrounding land claims, the practical challenges and the lack of strong incentives for the regional authorities to prioritize this.
The new Village Law was adopted in January 2014, and may provide an opportunity for seeking acknowledgement of customary forest ownership: villages shall, within one year, be classified as either [regular] villages or customary villages, and in case of the latter there are implications for the right to customary forests; which will no longer be considered as state forest.
Thus, if the law is to be implemented, regional governments must take a stance on which of the two categories a given village belongs to.This was some of the rationale behind the decision to hold trainings in the new Village Law.
Training on human rights and the new law
There are 19 villages in Delang and Batang Bawa sub-district where the customary forest ownership still is largely intact. The Alliance for customary people in Delang sub-district, AMAD, recruited the participants, while most of the content was delivered by the Institute for Ecosoc Rights and Yando Zakaria, who served as an advisor to the House of Representatives during the negotiations of the Village Law.
The content of the first two days of training was generally about human rights, whereas the next two days were about the Village Law. The two topics linked very naturally as there are many human rights principles – such as transparency, participation and accountability – that are central to the Village Law.
Also, if successfully implemented, the law could contribute to meeting some of Indonesia’s human rights obligations, such as those related to Free Prior and Informed Consent.
A big warning was however also conveyed at the training: previous research has found that there often are conflicts within villages, between those who favour commercial development and those who refuse it.
Such conflicts are often deliberately created, and in many areas, it is perceived that village heads have been bribed to give statements concerning customary land that benefits commercial interests.
The new village law regulates for the transfer of government funds to the village level, thus increasing the potential for misuse of power at village level. It is therefore important to have transparent and participatory structures in place to prevent this.
Also, there could potentially be conflicts between villages claiming the same land. To minimize the risk for this, villagers were encouraged to conduct inter-village consultation processes to synchronize their land claims.